Treants Enterprises, Inc. v. Onslow County

380 S.E.2d 602 (1989)

TREANTS ENTERPRISES, INC. v. ONSLOW COUNTY, The Sheriff of Onslow County in his official capacity; and The Onslow County Tax Collector in his official capacity.

No. 884SC739.

Court of Appeals of North Carolina.

July 5, 1989.

*604 Robert T. Hargett and Jeffrey S. Miller, Jacksonville, for plaintiff-appellant.

Roger A. Moore, Jacksonville, for defendants-appellees.

WELLS, Judge.

Plaintiff assigns error to the trial court's conclusion that the ordinance at issue in the present case is not vague or overly broad and not in violation of the Fourteenth Amendment of the United States Constitution and Article 1, Section 19 of the North Carolina Constitution.

Plaintiff contends that the ordinance is vague and overbroad, violating both the federal and state constitutions. The doctrines of vagueness and overbreadth are primarily concerned with rights and privileges protected by the federal constitution. In defining the vagueness doctrine the Supreme Court of the United States has stated: "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926); Coates v. Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971). "`It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.'" City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982) (quoting Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)) (emphasis in original).

"The overbreadth doctrine holds that a law is void on its face if it sweeps within its ambit not solely activity that is subject to governmental control, but also includes within its prohibition the practice of a protected constitutional right." Clark v. City of Los Angeles, 650 F.2d 1033 (9th Cir. 1981), cert. denied, 456 U.S. 927, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982). "The overbreadth doctrine has been applied almost exclusively in the areas of first amendment expressive or associational rights." Id. at 1039. Furthermore, "where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973).

In the present case the stated purpose of the ordinance is "to prevent the use of ostensibly legitimate businesses as blinds for pandering and prostitution" and "to protect minors from involvement with such *605 business practices and also to further public health, safety and welfare." Each of these objectives is clearly within the scope of the police power of the state. However, as noted above, legislation may be overbroad if it impermissibly infringes upon protected rights. One such right is the right of association.

"The Fourteenth Amendment protects from state interference the First Amendment right of citizens to freedom of association." Thomas S. By Brooks v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988). "Freedom of association is a fundamental right, implicit in the concept of ordered liberty." Id. at 1203. The ordinance at issue in the present case requires escort bureaus to keep a record of transactions with clients or customers. This record book must be kept on the premises and shall be made available for inspection to the Sheriff of Onslow County or one of his deputies. Information concerning the customers or clients and the escorts is required to be recorded, including the names and addresses of each party involved in a transaction. We hold that the record requirements of the ordinance constitute an impermissible infringement on the right of association of the customers, clients and patrons of an escort bureau. "A state violates the fourteenth amendment when it seeks to interfere with the social relationship of two or more people." Wilson v. Taylor, 733 F.2d 1539 (11th Cir.1984). The ordinance patently interferes with the social relationships.

The ordinance acts to impose the tangible presence of the State in the social affairs of its citizens each time a citizen wishes to utilize the services of an escort. This type of governmental presence is the type of interference expressly prohibited by the First Amendment guarantee of right of association. As the court stated in Thomas S. By Brooks, supra, "[e]ven an indirect infringement on associational rights is impermissible and subject to the closest scrutiny." Though the ordinance is intended to directly affect and regulate the escort bureaus, it has the indirect effect of infringing on the associational rights of customers, clients or patrons. Therefore, the ordinance interferes with the social relationship of two or more people and is subject to the closest or strictest scrutiny.

"It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the `liberty' assured by the Due Process Clause of the Fourteenth Amendment...." N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). Subsequent decisions have established that "[t]he constitutional guarantee not only protects an individual's associations with others for the purpose of advancing shared political and religious beliefs, but encompasses the right simply to meet with others and applies to social and personal associations." Thomas S. By Brooks, supra at 1203. "[O]nly a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms." N.A.A.C.P. v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). The State must also "[employ] means closely drawn to avoid unnecessary abridgment of associational freedoms" in achieving its objectives. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). In the present case the county has established that it has a compelling interest in preventing the use of escorts for pandering and prostitution, the protection of minors and the furtherance of public health, safety and welfare. The county has failed to show, however, that the means employed are drawn so as not to infringe on the associational freedoms of persons who may seek the services of one escort.

[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). We hold that the county's objectives can be pursued by *606 less drastic means than the ordinance at issue. The preamble to the ordinance indicates that other law enforcement methods, such as undercover officers, have been used to police adult entertainment businesses such as escort bureaus. These methods, including police surveillance, informants and other traditional methods of law enforcement would be less intrusive on the rights of association of the escort bureaus' customers than the recordkeeping provisions of the ordinance. Though we note that the ordinance states that use of undercover officers has not always been successful in preventing these criminal offenses, lack of success does not serve as an excuse for an infringement on First Amendment rights of association.

A plausible challenge to a law as void for overbreadth can be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory way of severing the law's constitutional from its unconstitutional applications so as to excise the latter clearly in a single step from the law's reach.

L. Tribe, American Constitutional Law, § 12-27, (2d ed. 1988) (emphasis in original). The ordinance states in the preamble: "Accomplishing the objectives of this ordinance can only be effectively achieved through the records requirement." The ordinance's target is "all such adult-entertainment businesses which offer that sort of companionship involved with socializing and amusement." The protected activity in the present casethe rights of association of the escort bureau's customersis a significant part of the target of the ordinance. The type of companionship involved with socializing and amusement mentioned in the ordinance is non-existent without the participation of the customers who must exercise their rights of association to engage in this activity. We can perceive no satisfactory way to excise the unconstitutional application of the ordinance's records requirement while still effectively achieving the ordinance's stated constitutional objectives. If the records requirement is removed the ordinance will be made, by its own implicit admission, ineffectual. The unconstitutional effect of the ordinance is not only real but is substantial when judged against the ambit of its legitimate application. Therefore, we hold that the ordinance at issue in the present case is unconstitutional as written, being void for overbreadth.

We also hold the ordinance to be void for vagueness. As noted above, an ordinance is violative of the due process of law when it forbids or requires the doing of an act in terms which are so vague that men of ordinary intelligence must necessarily guess at its meaning and differ as to its application. The ordinance in the present case presents this problem.

The term "escort" is defined as "[a]ny person who, for hire or reward, accompanies others to or about social affairs, entertainment or places of amusement," or "[a]ny person who, for hire or reward, consorts with others for purposes of socializing and/or amusement and/or entertainment about any place of public resort or within any private quarters." Though the term "escort" is susceptible to the apparent intended meaning of the ordinance, the term is also susceptible to other connotations. Our Supreme Court has stated that the term "escort" "connotes a companion for purposes of socializing and amusement...." Treants Enterprises, Inc. v. Onslow County, 320 N.C. 776, 360 S.E.2d 783 (1987). In modern society the term "escort" as defined by the ordinance could include, for example, dance instructors, golf and tennis professionals, personal or social secretaries, and chauffeurs. The wording of the Onslow County ordinance "provide[s] only a vague, uncertain and unintelligible notion of [its] scope, at which persons of common intelligence must necessarily guess." Eaves v. Board of Clark Co. Comm'rs, 96 Nev. 921, 620 P.2d 1248 (1980). "The imprecision in the language of the ordinance permits, and is likely to encourage, arbitrary and discriminatory enforcement." Id. at 924, 620 P.2d at 1250. The Eaves court in construing a substantially similar ordinance to the one in the present case stated:

*607 The mere existence of Ordinance No. 595, as written, is likely to deter law-abiding citizens from conduct which may or may not be covered by its provisions. As written, Ordinance No. 595 fails to provide law enforcement officials with adequate guidance concerning the precise scope of the activities it aspires to proscribe. Consequently, Ordinance No. 595 is void for vagueness on its face.

Id. at 924-925, 620 P.2d at 1250. The ordinance at issue in the present case presents the same problems. The imprecision and ambiguity of the wording of the Onslow County ordinance causes the ordinance to be void for vagueness on its face.

We next turn our attention to plaintiff's argument concerning the validity of the ordinance under Article I, Section 19 of the North Carolina Constitution. Article I, Section 19, provides in part, the following: "No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land." N.C. Const. art. I, § 19. We note that the predecessor to the ordinance at issue in the present case was previously found to be invalid under this section by this Court in Treants Enterprises, Inc. v. Onslow County, 83 N.C.App. 345, 350 S.E.2d 365 (1986) and the North Carolina Supreme Court, Treants, supra. The two ordinances are substantially the same with the exception of the substitution of the words "escort bureau" for "a business providing male or female companionship" and "escort" for "employee (whose duties involve the conducting of said business)." This Court held that the prior ordinance was overbroad and vague stating that "the ordinance lacks any rational, real and substantial relation to any valid objective of Onslow County and ... it thus offends Article 1, Secs. 1 and 19 of the Constitution of North Carolina." Treants, 83 N.C.App. at 357, 350 S.E.2d at 373. Our Supreme Court affirmed this decision holding that the prior Onslow County ordinance, "by reason of its overbreadth, ... is not rationally related to a substantial government purpose and violates our state constitution." Treants, 320 N.C. at 780, 360 S.E.2d at 786. In its opinion the Supreme Court stated that "[t]he terms `escort bureau' and `escort service' are often regarded as euphemisms for prostitution...." Id. The substitution of the words "escort" and "escort bureau" in the ordinance in the present case appears to be an attempt by the county to correct the problems posed by the earlier version of the ordinance.

"Our Supreme Court has held that the term `law of the land,' as used in Article 1, Section 19 of the North Carolina Constitution, is synonymous with `due process of law' as that term is applied under the Fourteenth Amendment to the United States Constitution." In re Petition of Kermit Smith, 82 N.C.App. 107, 345 S.E.2d 423 (1986). "For a statute to be within the limits set by the federal due process clause and the North Carolina `law of the land' provision, all that is required is that the statute serve a legitimate purpose of state government and be rationally related to the achievement of that purpose." Shipman v. N.C. Private Protective Services Bd., 82 N.C.App. 441, 346 S.E.2d 295, disc. rev. denied and appeal dismissed, 318 N.C. 509, 349 S.E.2d 866 (1986). "The inquiry is thus two-fold: (1) Does the regulation have a legitimate objective? and (2) If so, are the means chosen to implement that objective reasonable?" Treants, supra, 83 N.C.App. at 352, 350 S.E.2d at 370.

The county, as discussed above, has established that it has a legitimate objective in promulgating the ordinance in the present case. The prevention of the use of ostensibly legitimate businesses as blinds for prostitution, the protection of minors from involvement with such businesses and the furtherance of public health, safety and welfare are valid and legitimate governmental objectives. However, the means chosen by the county in the present case to implement these objectives are not reasonable in light of their effect on rights of association between the public at large and escorts. Though the use of the term "escort bureau" in the present ordinance may serve to narrow the scope of the ordinance's application and effect, thereby *608 avoiding the overbreadth problem posed by its predecessor, the sweep of the present ordinance infringes on rights of association guaranteed by the First Amendment. Therefore, the ordinance is patently unreasonable and violative of Article I, Section 19 of the North Carolina Constitution.

For the foregoing reasons, we hold that the Onslow County ordinance is void as it violates the First and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the North Carolina Constitution.

As a result of our decision above, it is unnecessary for us to address plaintiff's other assignments of error.

Reversed.

HEDRICK, C.J., and ARNOLD, J., concur.